of calling them to account but by first removing them; for none can legally do it but those who are put in their place. [ *395] *As to lands, or other real property, as the church, churchyard, &c., they have no sort of interest therein; but, if any damage is done thereto, the parson only or vicar shall have the action. Their office also is to repair the church, and make rates (52) and levies for that purpose: but these are recoverable only in the ecclesiastical court (53). They are also joined with the overseers in the care and maintenance of the poor. They are to levy (e) a shilling forfeiture on all such as do not repair to church on Sundays and holidays, and are empowered to keep all persons orderly while there; to which end it has been held that a churchwarden may justify the pulling off a man's hat, without being guilty of either an assault or trespass (f). There are also a multitude of other petty parochial powers committed to their charge by divers acts of parliament (g). VIII. Of parish clerks. VIII. Parish clerks, and sextons, are also regarded by the common law as persons who have freeholds in their offices; and therefore, though they may be punished, yet they cannot be deprived, by ecclesiastical censures (h). The parish clerk (e) Stat. 1 Eliz. c. 2. (g) See Lambard of Churchwar- (52) The text would seem to imply But and Dr. Burn, tit. Church, Churchwardens, Visitations. (h) 2 Roll. Abr. 234. cept when a majority of the parish consists of dissenters; and in such cases, it does seem to the present writer, (who is, upon conviction, a member of the established church), rather hard to throw the burthen of repairing the church upon those who attend and support other places of worship. It is not by straining the privileges of any establishment too high, that its permanency will be best secured. (53) When church-rates have been duly made, and their validity is not under dispute in any ecclesiastical court, any sum due in respect of such rates, provided it does not exceed 107., may be recovered from the defaulter before two justices of the peace. (See the statute of 53 Geo. III. c. 127, s. 7). was formerly very frequently in holy orders, and some are so to this day. He is generally appointed by the incumbent, but by custom may be chosen by the inhabitants; and, if such custom appears, the court of King's Bench will grant a mandamus to the archdeacon to swear him in, for the establishment of the custom turns it into a temporal or civil right (i). (i) Cro. Car. 589. 396 CHAPTER XII. OF THE CIVIL STATE. The civil state consists of, 1. The nobility. 2. The commonalty. THE lay part of his majesty's subjects, or such of the people as are not comprehended under the denomination of clergy, may be divided into three distinct states, the civil, the military, and the maritime. That part of the nation which falls under our first and most comprehensive division, the civil state, includes all orders of men from the highest nobleman to the meanest peasant, that are not included under either our former division, of clergy, or under one of the two latter, the military and maritime states: and it may sometimes include individuals of the other three orders; since a nobleman, a knight, a gentleman, or a peasant, may become either a divine, a soldier, or a seaman. The civil state consists of the nobility and the commonalty. Of the nobility, the peerage of Great Britain, or lords temporal, as forming, together with the bishops, one of the supreme branches of the legislature, I have before sufficiently spoken: we are here to consider them according to their several degrees, or titles of honour. All degrees of nobility and honour are derived from the king as their fountain (a): and he may institute what new titles he pleases (1). Hence it is that all degrees of nobility (a) 4 Inst. 363. (1) A late annotator doubts the accuracy of the position laid down in the text, because, as he says, there are numerous instances wherein a parliamentary recognition of a patent of peerage was held necessary, previously to the patentee being permitted to sit in the house of lords. For the latter part of this statement, no authority is adduced; and the recognition of dignities granted by the king, by no means disproves Blackstone's assertion, that the king may institute what new titles he pleases. It certainly does appear, from Co. Lit. 16. b., that even a "creation" of nobility by parliament, was a mode of creation not unknown, in theory at any rate, and perhaps not unknown in are not of equal antiquity. Those now in use are dukes, marquesses, earls, viscounts, and barons (b). *1. A duke, though he be with us, in respect of his title of nobility, inferior in point of antiquity to many others, yet is superior to all of them in rank; his being the first title of dignity after the royal family (c). Among the Saxons, the Latin name of dukes, duces, is very frequent, and signified, as among the Romans, the commanders or leaders of their armies, whom in their own language, they called heɲetoza (d); and in the laws of Henry I., as translated by Lambard, we find them called heretochii. But, after the Norman conquest, which changed the military polity of the nation, the kings themselves continuing for many generations dukes of Normandy, they would not honour any subjects with the title of duke, till the time of Edward III., who claiming to be king of France, and thereby losing the ducal in the royal dignity, in the eleventh year of his reign, created his son, Edward the Black Prince, Duke of Cornwall: and many, of the royal family especially, were afterwards raised to the like honour. However, in the reign of Queen Elizabeth, A. D. 1572 (e), the whole order became utterly extinct; but it was revived about fifty years afterwards by her successor, who was remarkably prodigal of honours, in the person of George Villiers, Duke of Buckingham. 2. A marquess, marchio, is the next degree of nobility. His 2. Marquess. office formerly was (for dignity and duty were never separated by our ancestors) (2) to guard the frontiers and limits of the king (b) For the original of these titles on the continent of Europe, and their subsequent introduction into this island, see Mr. Selden's Titles of Honour. (c) Camden, Britan. tit. "Ordines." (d) This is apparently derived from practice; this, however, is very far from establishing that at any period creations of nobility could not be made by the king alone. There were, no doubt, many periods, in the early part of our history, when the power of the nobility preponderated over, and enabled them to commit usurpations upon, the prerogatives of the crown; and, in the same root as the German hertzogen, (e) Camden, Britan. tit. "Ordines ;" such times, a newly created noble- (2) In the theories of our very remote 3. Earl. dom; which were called the marches, from the Teutonic word, marche, a limit: such as, in particular, were the marches of Wales and Scotland, while each continued to be an enemy's country. The persons who had command there were called lords marchers, or marquesses, whose authority was abolished by statute 27 Hen. VIII. c. 27, though the title had long before been made a mere ensign of honour; Robert Vere, Earl of Oxford, being created Marquess of Dublin by Richard II. in the eighth year of his reign (ƒ). *3. An earl is a title of nobility so antient, that its original [ *398] cannot clearly be traced out. Thus much seems tolerably certain: that, among the Saxons, they were called ealdormen, quasi elder men, signifying the same as senior or senator among the Romans; and also schiremen, because they had each of them the civil government of a several division or shire. On the irruption of the Danes, they changed the name to eorles, which, according to Camden (g), signified the same in their language. In Latin they are called comites (a title first used in the empire) from being the king's attendants; "a societate nomen sumpserunt, reges enim tales sibi associant" (h). After the Norman conquest, they were for some time called counts or countees, from the French: but they did not long retain that name themselves, though their shires are from thence called counties to this day. The name of earls or comites is now become a mere title, they having nothing to do with the government of the county; which, as has been more than once observed, is now entirely devolved on the sheriff, the earl's deputy, or vice-comes. In writs and commisssions, and other formal instruments, the king, when he mentions any peer of the degree of an earl, usually styles him "trusty and wellbeloved cousin," an appellation as antient as the reign of Hen. IV., who being either by his wife, his mother, or his sisters, actually related or allied to every earl then in the kingdom, artfully and constantly acknowledged that connexion in all his (ƒ) 2 Inst. 5. (g) Britan. tit. "Ordines." (h) Bracton, 1. 1, c. 8; Flet. 1. 1, c. 5. been deemed inseparable; but, our au- signs of honour. As to the origin of lords marchers, see the addition to Mr. Christian's note (3), p. 94, ante. |